Kubik v. Scripps College

• Decision Date: 30 April 1981
• Citation: 118 Cal.App.3d 544,173 Cal.Rptr. 539
• Court: California Court of Appeals Court of Appeals
• Parties: , 37 Fair Empl.Prac.Cas. (BNA) 1519 Gail KUBIK, Plaintiff, Appellant, and Cross-Respondent, v. SCRIPPS COLLEGE; the Board of Trustees of Scripps College; President John Chandler and Does I through XX, inclusive, Defendants, Respondents, and Cross- Appellants. Civ. 60704.

Page 539

173 Cal.Rptr. 539

118 Cal.App.3d 544, 37 Fair Empl.Prac.Cas. (BNA) 1519

Gail KUBIK, Plaintiff, Appellant, and Cross-Respondent, v. SCRIPPS COLLEGE; the Board of Trustees of Scripps College; President John Chandler and Does I through XX, inclusive, Defendants, Respondents, and Cross- Appellants.

Civ. 60704.

Court of Appeal, Second District, Division 1, California.

April 30, 1981.

Hearing Denied June 24, 1981.

Ronald R. Talmo, Crona Del Mar, for plaintiff, appellant, and cross-respondent.

O'Melveny & Myers and Robert A. Siegel and T. Warren Jackson, Los Angeles, for defendants, respondents, and cross-appellants.

SPENCER, Presiding Justice.

INTRODUCTION

Plaintiff Gail Kubik appeals from an order denying his request for a preliminary injunction by which plaintiff sought to restrain defendants Scripps College, The Board of Trustees of Scripps College and President John Chandler from terminating his employment at the end of the 1979-1980 academic year as a professor of music composition under a contract of unlimited tenure. Defendants had informed plaintiff by letter on May 11, 1979 that the ensuing academic year would be the final year of his appointment in that he would reach the "normal retirement age" of 65 during the course of that year.

Plaintiff founded his request for a preliminary injunction on the premise that Labor Code section 1420.15, subdivision (a), which excepted employees of institutions of higher education who served under contracts of unlimited tenure from the general prohibition against mandatory retirement contained in Labor Code section 1420.1, denied him equal protection of the law as guaranteed by the California Constitution, Article 1, section 7. The trial court found sufficient state involvement by enactment of Labor Code section 1420.15 to constitute state action, but denied the injunction on the ground that the statute satisfied the rational basis standard of equal protection review. ¹

CONTENTIONS

I

Plaintiff contends that the trial court erred in applying the rational basis standard of review for the following reasons:

A. Plaintiff possesses a fundamental right to pursue his chosen profession which requires application of a strict scrutiny standard of equal protection review, and

B. Strict scrutiny is further required in that age is a suspect classification under the California Constitution.

II

Additionally plaintiff avers that Government Code section 12942, subdivision (a) must fall when subjected to a strict scrutiny standard of review as unnecessary to the furtherance of a compelling state interest.

DISCUSSION

I Fundamental Right to Pursue Chosen Profession

There is no merit to plaintiff's broad assertion that he possesses a fundamental right to pursue his chosen profession in the instant context. Notwithstanding the principle enunciated in Truax v. Raich (1915) 239 U.S. 33, 41, 36 S.Ct. 7, 10, 60 L.Ed. 131 that the right to work at a lawful occupation is an essential component of liberty, the United States Supreme Court consistently has refused to recognize a fundamental right to particular employment. (Vance v. Bradley (1979) 440 U.S. 93, 96-97, 99 S.Ct. 939, 943, 59 L.Ed.2d 171; Massachusetts Bd. of Retirement v. Murgia (1976) 427 U.S. 307, 313, 96 S.Ct. 2562, 2566, 49 L.Ed.2d 520. ² ) California courts have followed substantially the same reasoning, holding in Townsend v. County of Los Angeles (1975) 49 Cal.App.3d 263, 267, 122 Cal.Rptr. 500 that there is no fundamental right to work for a particular employer, public or private. (Accord Schmier v. Board of Trustees (1977) 74 Cal.App.3d 314, 318-319, 141 Cal.Rptr. 472, appeal dismissed 440 U.S. 941, 99 S.Ct. 1415, 59 L.Ed.2d 630; American Federation of Teachers College Guild v. Board of Trustees (1976) 63 Cal.App.3d 800, 134 Cal.Rptr. 111.)

Plaintiff nevertheless relies on Sail'er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 95 Cal.Rptr. 329, 485 P.2d 529 and the limitation enunciated in D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 112 Cal.Rptr. 786, 520 P.2d 10 as establishing a fundamental right to engage in the "common occupations of the community." It is questionable whether D'Amico may be fairly construed as extending to plaintiff a right to be free from mandatory retirement by any college or university whatsoever. D'Amico acknowledged that the rational basis standard of review is traditionally applied to occupational regulation. (Id., at p. 17, 112 Cal.Rptr. 786, 520 P.2d 10.) The few exceptions invariably have involved a classification which is "suspect" in constitutional terms. (See, e. g., In re Griffiths (1973) 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910, Raffaelli v. Committee of Bar Examiners (1972) 7 Cal.3d 288, 101 Cal.Rptr. 896, 496 P.2d 1264, Purdy & Fitzpatrick v. State of California (1969) 71 Cal.2d 566, 79 Cal.Rptr. 77, 456 P.2d 645 (national origin or alienage); Gay Law Students Assn. v. Pacific Tel. & Tel. Co. (1979) 24 Cal.3d 458, 156 Cal.Rptr. 14, 595 P.2d 592 (sexual preference; touches upon fundamental privacy interest); Sail'er Inn, Inc. v. Kirby, supra, 5 Cal.3d 1, 95 Cal.Rptr. 329, 485 P.2d 529 (gender).) Moreover, the California exceptions noted all have involved the creation of a general barrier to the pursuit of an occupation by a particular group. Hence there is no apparent conflict between Townsend v. County of Los Angeles, supra, 49 Cal.App.3d 263, 122 Cal.Rptr. 500 and D'Amico v. Board of Medical Examiners, supra, 11 Cal.3d 1, 112 Cal.Rptr. 786, 520 P.2d 10. ³

In any event, D'Amico drew a clear distinction between "common occupations" and "professions whose technical complexity and intimate relationship to the public interest and welfare counsel greater deference to the legislative judgment." (Id., at p. 18, 112 Cal.Rptr. 786, 520 P.2d 10.) Plaintiff would have D'Amico and its successor, Hardy v. Stumpf (1978) 21 Cal.3d 1, 45 Cal.Rptr. 176, 576 P.2d 1342, limited to the areas occupied by the professions at issue therein: health care (medical doctors) and public safety (police officers). We are unwilling to limit the scope of D'Amico so narrowly and proceed to analyze plaintiff's profession by the D'Amico standard.

However an earlier period may have viewed teaching in general, the profession of educator at an institution of higher learning cannot now fairly be viewed as a "common occupation of the community." Hence we consider references in Meyer v. Nebraska (1923) 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 to teaching as a common occupation inapposite. Without question, the profession of college or university educator involves technical complexity ranging from applied nuclear physics to Chaucerian literature. Moreover, the intimate relationship of education to public interest and welfare is not open to question in the wake of Serrano v. Priest (1976) 18 Cal.3d 728, 135 Cal.Rptr. 345, 557 P.2d 929. The fundamental nature of the right to receive an education, established in Serrano, denotes a most intimate link with public welfare. The state's interest in the protection of that right could not be greater. Therefore, it is appropriate with respect to plaintiff's profession that we accord "greater deference to the legislative judgment" than is necessary with more common occupations.

Age as a Suspect Classification

Plaintiff contends that age is a suspect classification under the California Constitution, relying on the criteria applied in Sail'er Inn, Inc. v. Kirby, supra, 5 Cal.3d 1, 18-19, 95 Cal.Rptr. 329, 485 P.2d 529 in establishing gender as a suspect classification. We disagree.

As Sail'er Inn noted, a suspect classification is one marked by an immutable characteristic grounded in the accident of birth and resulting in a stigma of inferiority and second class citizenship. (Ibid.) Plaintiff asserts that age, like gender, is an immutable characteristic resulting from an accident of birth. While the age of each of us at any particular time is the certain result of the date of our birth, the progression through the stages of life is simply a natural process to which every one of us is subject. As a result, no member of an age group labors under any disability not encountered by every other member of society at some point in time. In that regard, age cannot be equated with race, lineage, national origin or sex.

The aged, unlike women, aliens or blacks, have not labored under unique social and legal disabilities, experiencing a history of purposeful unequal treatment. The aged have not been disenfranchised, excluded from juries or public office, or denied equality in the area of property ownership. While the treatment of the aged in our society has not been entirely free of discrimination, particularly in the area of employment opportunity, old age does not define a "discrete and insular class" occupying a position of political powerlessness which "commands extraordinary protection from the majoritarian political process." (Massachusetts Bd. of Retirement v. Murgia, supra, 427 U.S. 307, 313, 96 S.Ct. 2562, 2566, 49 L.Ed.2d 520.) The legislative policy expressed in Labor Code section 1411 that "it is necessary to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgement on account of ... age" does not compel a different result. While expressions of public policy are valuable aids in construing the meaning of a statute, it is inappropriate to test the constitutionality of legislation by construing public policy except where the policy is constitutionally mandated. (Schmier v. Board of Trustees, supra, 74 Cal.App.3d 314, 319, 141 Cal.Rptr. 472.) Accordingly, even if Government Code section 12942, subdivision (a) may be said to impose a penalty on a class defined as the aged, contrary to the policy expressed in Labor Code section 1411, the distinction drawn is not sufficiently akin to those classifications heretofore characterized as suspect to require strict scrutiny.

II

As ...